An independent judiciary

Few would deny the necessity to ensure the independence and accountability of the judiciary. The flaws that already exist in relation to government appointments and the lack of a proper disciplinary process threaten that delicate balance. These matters have required reform for decades. But discussions between successive governments and the judiciary have been fragmentary and difficult and there is no certainty the eventual outcome will advance the common good. A Judicial Council Bill, which provides for formal but secretive complaints procedures and non-judicial participation will return to the Oireachtas next month. It may cause upset. In that context, the “tentative ideas” put forward for public debate by Mr Justice Frank Clarke should be carefully considered.

Judge Clarke acknowledged the conflicting views that exist within the legal and political establishments on these issues and, as a consequence, he made no firm proposals. His suggestion that an over-arching Judicial Commission, drawing its membership from politics, the law and civil society should appoint judges, oversee a disciplinary system and regulate their pay and conditions is comprehensive. But its complexity and the need to provide for its various strands under the Constitution and in law could delay its introduction for many years.

Disciplinary procedures, drafted to a large extent by the judiciary and involving offences short of impeachment, will be introduced in the near future. That will offer some reassurance. But public trust and confidence is also influenced by the quality of judges and the manner in which they are appointed. The stark reality in that regard is that judicial appointments are political appointments. Hopeful barristers have always flocked to parties in power and, on some occasions, inappropriate appointments were made. That had begun to change in recent years but the present Government has in some instances, to its discredit, reverted to form. Because of that, a more independent and transparent appointment system is required.

Speed and efficiency in the administration of justice should also receive attention. Chief Justice Susan Denham recently complained that the Supreme Court was unable to function properly because of a backlog of cases and she urged the establishment of a superior Court of Civil Appeal. That is now likely to happen. A specialised Family Courts structure is also mooted. These changes will require the appointment of additional judges. In spite of an increase in the number of courts and judges, however, the working year remains fixed in the last century. The Constitution offers a balance between executive power and judicial independence. That represents a vital element in a functioning democracy. Increased transparency and accountability by governments and judges would also contribute to public confidence.